BOTH LAL GURJAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These appeals are directed against judgment dated 19.09.2012 passed by the Court of Additional Sessions Judge, Camp Court Bhawani Mandi, District Jhalawar (for short 'the trial court') whereby the accused-appellants were convicted and sentenced for offence under Sec. 148 Penal Code to three years' rigorous imprisonment and fine of Rs. 500.00 each, in default of payment of fine to further undergo three months' rigorous imprisonment; for offence under Sec. 302/149 Penal Code to life imprisonment and fine of Rs. 2,000.00 each, in default of payment of fine to further undergo three years' imprisonment; for offence under Sec. 307/149 Penal Code to ten years' rigorous imprisonment and fine of Rs. 1,000.00 each, in default of payment of fine to further undergo one year's rigorous imprisonment and for offence under Sec. 341 to one month's simple imprisonment. All the sentences were ordered to run concurrently.

(2.) Briefly stated the facts of the case are that on 01.10.2008, complainant Sujan son of Kashiram (P.W.2) submitted a written report (Exhibit P-37) to ASI, Shri Ramzan Mohammad (P.W.23) at Maal Moja Salotiya, addressing in the said report to SHO, Police Station Sunel, District Jhalawar alleging an incident to have taken place on the same day at about 12.00 P.M. On the basis of the above mentioned report, the police registered a criminal case bearing F.I.R. No. 147/2008 for offence under Sections 147, 148, 149, 341, 323, 307 Penal Code and investigation commenced. During investigation injured Shyam Lal and injured Balu @ Balaram died during treatment and Sec. 302 Penal Code was added. Upon completion of investigation, the police submitted the charge sheet against accused persons including the present accused-appellants for offence under Sections 147, 148, 149, 341, 323, 325, 307, 302 and 201 I.P.C. in the Court of learned Additional Chief Judicial Magistrate, Bhawani Mandi. The offences being exclusively triable by court of Sessions, thereby the learned Magistrate committed the case to the Court of learned District and Sessions Judge, Jhalawar and ultimately the case was transferred to the court of learned Additional Sessions Judge, Camp Court Bhawani Mandi, District Jhalawar for trial. The trial court after hearing the arguments on charge, framed the charges against the accused appellants for offence under Sections 147, 148, 302, 302/149, 307, 307/149, 341 IPC. The accused appellants denied the charges and claimed to be tried. The prosecution in support of its case produced 28 witnesses and exhibited 57 documents. Thereafter, the accused-appellants were examined under Sec. 313 Crimial P.C., 1973 wherein they stated that they have been falsely implicated in the case and they are innocent. In defence, no witness was produced and 12 documents were got exhibited. Upon completion of trial, learned trial court vide judgment dated 19.09.2012 convicted and sentenced the accused-appellants in the manner indicated here-in-above.

(3.) Learned counsel for the appellants have addressed the Court on the manner in which the learned trial court has recorded finding of conviction against six accused-appellants. It is argued that there were in all 12 accused named in the FIR and it was additionally alleged by the informant that many other accused were with them. Learned counsel have referred to discussion made by the trial court in para no. 15 and 16 of the impugned judgment where the learned trial court has relied on the statement of Sujan (P.W.2) informant and injured eye witness, Kishan Lal (P.W.3) and then referred to para no. 21 of the judgment where the trial court has disbelieved Tufan (P.W.4); Nanda @ Nandlal (P.W.10) and Rajaram (P.W.24) as eye witnesses. It is contended that the police did not file charge sheet against six accused persons against whom specific allegation was made in the FIR for using weapons such as firearm and sword whereas there were no corresponding firearm injuries. It is argued that the kind of injuries which the deceased sustained also could not have been caused by sword. The police filed charge sheet against 13 accused, but the learned trial court has convicted only six accused whose names were mentioned in the FIR and acquitted all seven accused whose names were not mentioned in the FIR. But in doing so, learned trial court has adopted a very strange method in analysing the evidence on record. In this connection, learned counsel court referred to findings recorded by the learned trial court in para 24, 25, 29 and 30 of the judgment and argued that findings of the learned trial court are based entirely on the statements of the witnesses originally recorded under Sec. 161 Crimial P.C., 1973 and their supplementary statements (titamba bayan) recorded subsequently. Learned counsel argued that previous statement of the prosecution witnesses in view of Sec. 145 of the Evidence Act could be used only for the purpose of confronting them at the time cross examination and not for any other purposes. Police statements of the prosecution witnesses cannot be read for any other purpose.